Trustees beware: submit with care

The Royal Court of Jersey has recently heard an interestingapplication reported in Jersey as In the Matter of CI Law TrusteesLimited and Folio Trust Company Limited as Trustees of the FountainTrust [2005 JRC099]. The case concerned an application for directions by CI Law TrusteesLimited (the ‘Trustee’) seeking directions as tohow to respond to a judgement of the Family Division of theHigh Court of Justice in England and Wales setting aside a Jerseylaw trust (the ‘Trust’) as a sham, and orderingthe Trustee to transfer the Trust assets to the petitioner inthe English matrimonial proceedings (the ‘Wife’).     

源于“书写”的权利与技术——令状的司法化与普通法的形成

令状制度(thesystem of writs)是英国普通法历史上最为重要也最具有特色的司法制度,在王室法院适用的司法化令状以及与之紧密相关的具体的诉讼程序,是普通法独特的司法治理赖以存在的程序基础,普通法正是在王室法院适用司法化令状而形成的大量判例中逐渐成长起来的。本文把历史背景定在早期英国法的形成时期,即诺曼征服(1066)至亨利-金雀花时期(1154-1189),通过考察普通法形成初期的历史,阐述令状司法化的进程及其对英国普通法形成的重大影响,从而形成对于普通法和英国式法治传统的独特认识。     

Book Reviews

In this article the author explores the gender‐bias question with respect to the female death penalty debate in the English‐Speaking Caribbean nation of Trinidad and Tobago by presenting a case study of Indravani Pamela Ramjattan. The British Privy Council recently remanded her case to the Trinidad Court of Appeal. A decision in her favor could set a regional precedent which would, for the time, allow women in the English‐Speaking Caribbean to present evidence akin to Battered Spouse Syndrome. Of the almost twenty nations of the English‐Speaking Caribbean, Trinidad and Tobago is the only nation to have any women on death row. Ms. Ramjattan was convicted for the murder of her husband. Her case gained international attention and support from women's groups who speak out on behalf of battered women. Although there is popular support, in general, throughout the Caribbean for the imposition of the death penalty, public sentiment in Trinidad and Tobago regarding the hanging of a female may prove to be very unpopular for the present government of Basedo Panday.     

Spanish Supreme Court provides limited relief for data controllers

Earlier this year the Spanish Supreme Court gave judgment on an application to annul the data protection regulations set out in Royal Decree 1720/2007 and to refer the Spanish implementation of the Data Protection Directive to the European Court of Justice. The application was partially successful. Some sections of the Royal Decree have been annulled but much of it was upheld. The Supreme Court also referred the Spanish implementation of the legitimate interests processing condition (art. 7(f) of the Data Protection Directive) to the European Court of Justice. The European Court of Justice’s decision could have a material impact on data controllers in Spain. If the legitimate interest condition is finally recognised it should make data protection compliance significantly easier.     

More questions than answers? R v Human Fertilisation and Embryology Authority ex parte Blood The Times 7th February 1997

The recent Court of Appeal decision in R v Human Fertilisation and Embryology Authority ex parte Blood (1997), was an attempt to reconcile media driven support for a widow's desire to have a child using sperm obtained from her comatose husband immediately prior to his death. The Court of Appeal held that the written consent of the husband had not been obtained in respect to the storage of his sperm and this was contrary to the requirements of the Human Embryology and Fertilisation Act 1990. However in the present case it was right that once the sperm had been removed, it was preserved and stored pending a ruling as there appeared to be some uncertainty surrounding the situation. The Court also held that the Human Fertilisation and Embryology Authority had failed to exercise its discretion correctly in refusing to give Mrs Blood permission to export the sperm to Belgium where the written consent of the donor to storage of gametes is not required. The Court of Appeal stated that there was no question of a precedent being set as this was a unique situation which should not arise again in the future.     

South Africa: damages awarded to woman infected by husband

In mid-2001, the High Court of South Africa issued its judgment in Patricio v Patricio, a civil case in which a woman sued her HIV-positive husband for infecting her with HIV.     

India: constitutional challenge to anti-sodomy law

On 7 December 2001, the Naz Foundation India Trust filed a petition with the Delhi High Court alleging that the prohibitions on sodomy in Indian law are unconstitutional.     

Enforcing English ancillary relief orders in Jersey: principles and pitfalls

The long running and unhappy divorce litigation between Mr andMrs Mubarak has finally reached a reasonably happy conclusionin the Royal Court of Jersey. In a well reasoned decision, theDeputy Bailiff has set out the guiding principles to be appliedwhen considering whether orders made by a foreign Court oughtto be enforced or given effect to in Jersey. Whilst undoubtedlyhelpful, the guidance also provides a salutary warning to foreignlitigants seeking access to assets within Jersey trusts thatthey are in for a bumpy ride.     

Inaccurate Conception: ACB v Thomson Medical

This note considers the decision of the Singapore Court of Appeal in ACB v Thomson Medical in which the plaintiff sought damages for the upkeep costs of a child conceived using sperm from someone other than her husband as a result of negligence by a fertility clinic. The Court held that upkeep costs could not be recovered as a matter of public policy, but recognised a new head of loss, namely damages for loss of genetic affinity. In a controversial ruling, the Court quantified these damages at thirty per cent of the upkeep costs of the child. While holding that punitive damages could be recovered outside the categories recognised in Rookes v Barnard, the Court rejected such an award on the facts of the case.     

Condliff v North Staffordshire Primary Care Trust: can human rights redress inequities in United Kingdom and Australian cost-containment-driven health care reforms?

A recent case from the English Court of Appeal (R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, concerning denial by a regional health care rationing committee of laparoscopic gastric bypass surgery for morbid obesity) demonstrates the problems of attempting to rely post hoc on human rights protections to ameliorate inequities in health care reforms that emphasise institutional budgets rather than universal access. This column analyses the complexities of such an approach in relation to recent policy debates and legislative reform of the health systems in the United Kingdom and Australia. Enforceable human rights, such as those available in the United Kingdom to the patient Tom Condliff, appear insufficient to adequately redress issues of inequity promoted by such "reforms". Equity may fare even worse under Australian cost-containment health care reforms, given the absence of relevant enforceable human rights in that jurisdiction.     

Indian NGO challenges penal code prohibition of "unnatural offences"

On 7 December 2001, the Naz Foundation (India) Trust (NFIT), a non-governmental organization based in New Delhi, filed a petition in the Delhi High Court to repeal the "unnatural offences" section of the Indian Penal Code that criminalizes men who have sex with men.     

Order in the Piazzi case

University Health Services, Inc. petitioned the Superior Court of Richmond County, Georgia, for an order to maintain life support systems for Donna Piazzi, a brain dead patient, to preserve the life of her quickened, nonviable fetus until the point of delivery with a reasonable chance of survival. Robert Piazzi, the husband, requested termination of support. The guardian ad litem of the fetus and David Haddon, the putative father, requested maintenance of support. The Division of Family and Children Services argued that the Court lacked jurisdiction. The Court concluded that, based on case law and on Georgia statutes, only the mother has the right to terminate a quickened, nonviable fetus and that public policy requires the maintenance of life support systems for a brain dead mother as long as there exists a reasonable possibility that the fetus may develop and survive.     

Rebutting the Presumption: Rethinking the Common Law Principle of Marital Coercion in Eighteenth- and Nineteenth-Century England

While many historians refer to the legal presumption of marital coercion when discussing patterns of lenient judicial treatment of women in eighteenth-and nineteenth-century English criminal trials, few have analyzed the presumption in enough detail to ascertain the impact it genuinely had. This article undertakes close legal analysis of marital coercion. It argues that the presumption was not frequently referred to in nineteenth-century Old Bailey criminal trials for receiving stolen goods because of increasing judicial strictness as to the application of the presumption. A defendant had to prove her marriage, her husband’s presence at the crime scene, and, by the nineteenth century, evidence of her husband’s actual control. The presumption may have shifted from an irrebuttable presumption to one rebuttable upon proof that any of these requirements were absent. Therefore, women’s lenient court treatment during the modern period cannot be straightforwardly attributed to frequent successful recourse to marital coercion.     

The right to minority language public school education as a function of the equality guarantee: a reanalysis of the Gosselin Supreme Court of Canada Charter case

This paper concerns a recent Supreme Court of Canada decision dealing ostensibly with the protection of language minority rights. The case, in fact, however, concerns the Court imposing statutory limits on constitutionally guaranteed equality and liberty rights. The Court in the instant case held as constitutional Quebec legislation permitting access to English language schools only to children who have received, or are receiving the majority of their instruction in English in Canada, or whose parents received the majority of their instruction in English in Canada at the primary school level. The appellants, members of the French majority in Quebec, could not meet those eligibility criteria. Therefore, they were held to have no right to access English language public schools for their children. The ruling, as discussed, is inconsistent with the equality and liberty guarantees as well as the minority language protection clause of the Canadian Charter of Rights and Freedoms.     

Drafting Trusts and Will Trusts in the Channel Islands, James Kessler QC and Paul Matthams

This is the latest in the series of book based upon James Kessler'swell-known book on the simplification of trust drafting. Theco-author of this publication is Paul Matthams, Advocate ofthe Royal Court of     

Property Interests in Body Parts: Yearworth v North Bristol NHS Trust

This note analyses Yearworth v North Bristol NHS Trust , in which the Court of Appeal accepted the existence of property interests in parts or products of the human body and considered the applicability of chattel torts where interference with such interests occurs. The writer questions whether the Court's decision to extend the law of bailment in the case was necessary, or whether the law of conversion or negligence should be available as the more appropriate causes of action.     

外国船员工资索赔:诉讼和仲裁之间的选择——评美国联邦第九巡回法庭the“Rogers v.Royal Caribbean Cruise Line”案

简要介绍美国联邦上诉法院第九巡回法庭the"Rogers v.Royal Caribbean Cruise Line"案的案情,回顾美国国会对船员在法院诉讼追偿工资的法定保护和支持执行《纽约公约》下仲裁的两个政策的历史背景以及法庭判案所遵循的先例,按照对案件争议点的审理思路,逐一分析法庭对船员雇佣合同中仲裁协议是否被美国《联邦仲裁法》排除条款排除、《公约法案》和《联邦仲裁法》发生冲突时的优先适用、仲裁协议是否合理以及仲裁条款是否符合公共利益的推理过程,论证法院判决的合理性,提出与判决相反的可能性解释,从而得出结论:出于权衡国会相互冲突的政策的目的,法院判决强制执行仲裁。最后,提出该案例对中国船员立法的借鉴意义。     

Patent procedure in England and Wales: the Streamlined Procedure meets resistance

The proposition by the English High Court in 2005 that the StreamlinedProcedure for dealing with patent actions should apply wheneverraised by a party to an action in the absence of convincingreasons to the contrary has been rejected by the Court of Appeal.     

夫妻共同债务推定规则的缺陷及重构——《婚姻法司法解释(二)》第24条之检讨

最高法院《婚姻法司法解释(二)》第24条规定的夫妻共同债务推定规则在施行中遭到许多质疑,本文从推定规则的制度来源、价值衡量、举证责任分配等方面分析其存在的立法缺陷,并提出重构设想。     

No (,) More Bolam Please: Montgomery v Lanarkshire Health Board

Montgomery v Lanarkshire Health Board concerned a negligent non‐disclose of certain risks involved in natural birth. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware a particular patient is likely to attach significance to that risk. The Court emphasised risk disclosure practices must focus on what the patient wants to know. Yet the Court's portrayal of this change as a development of Sidaway is questionable. The decision is problematic in its engagement with precedent, the new test's future implications and statements regarding therapeutic privilege. Despite rejecting Bolam v Friern Hospital Management Committee's relevance to risk disclosure, this case is likely to remain relevant.